I cover science and public policy, environmental sustainability, media ideology, NGO advocacy and corporate responsibility. I'm executive director of the Genetic Literacy Project (www.GeneticLiteracyProject.org), an independent NGO, and Senior Fellow at the World Food Center's Institute for Food and Agricultural Literacy at the University of California-Davis. I've edited/authored seven books on genetics, chemicals, risk assessment and sustainability, and my favorite, on why I never graduated from college football player (place kicker) to pro athlete: "Taboo: Why Black Athletes Dominate Sports and Why We're Afraid to Talk About It". Previously, I was a producer and executive for 20 yeas at ABC News and NBC News. Motto: Follow the facts, not the ideology. Play hard. Love dogs.

The Supreme Court heard the first day of oral arguments Monday in a case that could upend the biotech industry and DNA patent law, and have broad impact on biotech research. The legal echoes also could extend far beyond genetics.

Said baldy, the case revolves around what appears to be a deliberate attempt by one farmer to circumvent the law. Bowman v Monsanto is the long-anticipated square off between a 75-year old Indiana farmer and the world’s largest agricultural biotechnology firm. The decision will turn on the minutiae of patent law, but the implications will extend to all cutting-edge technologies.

But observers at the Supreme Court report that the justices, particularly those part of the more liberal bloc, appeared unsympathetic to Vernon Hugh Bowman, the farmer at the center of the case.

Justice Stephen Breyer told Bowman’s lawyer, Mark Walters from the firm of Frommer Lawrence and Haug, that Bowman, who was in the courtroom for oral arguments, could use the seed he had purchased for other purposes but could not harvest the crop from the next generation of seed.

“You know there are certain things that the law prohibits,” he said. “What it prohibits here is making a copy of the patented invention. And that is what he did.”

Likewise, Justice Elena Kagan clashed with Walters over his assertion that Monsanto could protect its patent rights by having contracts with farmers. “All that has to happen is that one seed escapes the web of these contracts,” she said. That single seed, “because it can self replicate in the way that it can, essentially makes all the contracts worthless,” Kagan added.

Without the existing patent protections, argued Monsanto’s lawyer Seth Waxman, “Monsanto could not have commercialized its invention.” Justice Department lawyer Melissa Sherry reinforced the St. Louis-based corporation’s position, arguing that a victory for Bowman would strike a blow to all patent holders.

The Associated Press is reporting that none of the justices seemed ready to side with Bowman. “Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one, anybody could grow more and have as many of those seeds as they want?” said Chief Justice John Roberts.

Monsanto has invested hundreds of millions of dollars developing the world’s top selling genetically modified seed and was granted patent protection for its investment. The seeds are engineered to require the use of less weed killers than used by conventional farmers, who use chemical sprays that can damage crops and reduce yields. It is specifically modified to be used with glyphosate, marketed by Monsanto as Roundup, an herbicide considered less harmful to crops, less environmentally harmful than the range of pesticides used in conventional farming and toxicologically benign.

According to farmers and scientists, the GM seed-glyphosate package is a unique product, far better than conventional soy seeds. The Supreme Court brief filed by Monsanto notes that more than 90 percent of the U.S. soybean crop now begins with Monsanto’s Roundup Ready seeds.

Here’s the rub: Every soybean plant produces enough seeds to grow approximately 80 more plants. Because of Monsanto’s huge investment in developing its Roundup seed, the biotech firm has insisted that farmers who want to use the technology sign licensing agreements that limit their use to a single season. Applying prevailing patent law, Monsanto also forbids farmers from planting second-generation seeds harvested from first-generation crops.

That arrangement long rankled Bowman, who often wears a Monsanto hat and sings the praises of the company’s genetically modified soybean seeds designed to resist glyphosate, which he acknowledges is far milder than the chemical sprays he otherwise had used, and does not harm his crops.

Bowman’s deliberate misuse of feed grain

His stated admiration for the GM seed didn’t stop Bowman from deliberating trying to game the patent system. He purchased Roundup Ready seeds for one season, and they worked as advertised. “It made things so much simpler and better. No question about that,” he recently told National Public Radio.

But Bowman also wanted to plant a second crop of soybeans later in the year in fields where he just harvested wheat. Those late-season soybeans are risky, he told NPR, because the yields are always smaller. To cut his risk, he hatched a scheme. “What I wanted was a cheap source of seed,” he acknowledged.

Cleverly (as anti-Monsanto and anti-GMO activists would have it) or fraudulently (as Monsanto, the biotechnology industry, the US government, many universities and most patent experts believe) Bowman recognized that since Monsanto’s seeds were ubiquitous in his region, the commodity soybean seeds sold by local grain elevators would necessarily contain mostly Roundup Ready seeds.

Starting in 1999, he bought ordinary soybean seeds from a small grain elevator where local farmers drop off their harvest. “They made sure they didn’t sell it as seed, which would have violated their patent agreement with Monsanto. Their ticket said, ‘Outbound grain’,” Bowman acknowledged, which means by the conventions of the farm the seeds were supposed to be use as feed grain.

The farm industry has always depended upon an honor system to differentiate feed grain from crop grain. Bowman, the self-proclaimed David, chose to deliberately upend that. He guessed he could circumvent his legal agreement and save a bundle at Monsanto’s expense by discontinuing buying the Roundup seeds and instead purchasing far less expensive local commodity feed grain. And when he treated his second crop with herbicide, he was proved right—most of the budding plants were resistant.

Activists claim Bowman was acting ethically, saying that Monsanto’s restrictions hurt farmers, cause higher food prices and, according to one friend-of-the-court brief, contribute to “the suffocation of independent scientific inquiry into transgenic crops.” Whether those assertions are true or not—most independent analysts believe such characterizations are hyperbolic or just plain wrong—the case will turn on patent law. In other words, was Bowman acting legally?

Bowman and supportive briefs by such anti-GMO crusaders as the Center for Food Safety (CFS) contend he merely ambled through a legal loophole in his license agreement that allows farmers to sell the second-generation seeds to grain elevators, which, in turn, are permitted to sell a mixture of undifferentiated seeds as “commodity grain.” Monsanto holds that commodity grain is explicitly restricted for use as feed, not cultivation, and its use, even as a second season commodity purchase violates the one-time use license agreement. Bowman and CFS respond that he should not be held victim because Monsanto screwed up in its patent protections and he doesn’t believe he did anything wrong.

Understandably concerned, Monsanto sued him for infringing its Roundup Ready patents by using, without authorization, second-generation seeds embedded with its technology. Monsanto contends that if Bowman prevails in this case, farmers could save seeds from one season’s crop to plant the following year, eviscerating its hard-earned patent rights.

The farmer’s lawyer, Mark Walters, who is volunteering his time, argued that under the doctrine of patent exhaustion (interpreted most recently by SCOTUS in Quanta Computer v. LG Electronics), in using second-generation seeds, the farmer was merely reselling a patented product he’d already paid for. Walters contends he is merely restating a very old principle in patent law: If you buy something that’s covered by a patent—let’s say it’s a cell phone, he says as an example—you own it, outright, and the patent protections disappear.

Courts back Monsanto

Indiana U.S. District Court disagreed, granting summary judgment to Monsanto, awarding the company $85,000 in damages. The Federal Circuit Court of Appeals, which had already twice upheld Monsanto’s right to bar farmers from planting second-generation seeds, also sided with Monsanto, finding the company’s patent rights were not exhausted in the first-generation harvest. Even if patent exhaustion did apply, the appeals court additionally held, Bowman infringed anew by growing a crop that that included Monsanto’s patented technology, effectively decimating Monsanto’s rights as a patent holder.

The Supreme Court had declined to review those two previous Federal Circuit decisions, but the justices granted Bowman’s cert petition. His lawyers then filed a merits brief, asserting that the Federal Circuit’s ignored Supreme Court precedent set in 2008 by the Quanta computer v LG Electronics decision, which the farmer claimed dictates that patent rights are exhausted after the authorized sale of a patented product.

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Anthony, with all due respect, Rosebud is not a serious magazine. There is not one documented example in the science literature of anyone catching so much as the sniffles as a result of eating foods that have been genetically modified. If you had even a rudimentary understanding of science, you’d acknowledge that a process–moving proteins from one organism to another–could in no way pose unique health hazards as a result of that process. You are just passing on anti-science hysteria. Please…stick to peer reviewed journals looking at impacts on humans, and a dose of common sense.

That “natural” wheat you plant was engineered by humans over the last two thousand years. It’s the furthest thing from “nature” or “natural” or something that could ever have emerged from natural selection. ALmost every grain and fruit grown today was changed/altered by man’s hand. Now we have an opportunity to do precisely what has been done by radiation or creating other mutant acts to crudely engineer plants, all to keep allergenicity down and develop so many positive attributes…and you are against it? And you’d like to be seen as the ‘good guy’ in this debate???? GMOs do not “contaminate” things. For many grain varietals, they add life saving nutrition or drought resistance or other highly favorable attributes that help address global food security. If you are are anti-poor or against providing decent food for the developing world, so be it.

@Jon, Here is some RESEARCH, published in a JOURNAL, regarding the safety (or lack thereof) of GMOs:

From the Journal of Applied Toxicology ( http://onlinelibrary.wiley.com/doi/10.1002/jat.2712/abstract ): “There was the same tendency for the other markers. In these results, we argue that modified Bt toxins are not inert on nontarget human cells, and that they can present combined side-effects with other residues of pesticides specific to GM plants.”

I have more and would be happy to provide the links to the RESEARCH for your review…

You are scientifically hopeless Liz. This is a Seralini study! His work has been reviewed by almost every major European and world genetics association, and has been discredited. He is literally a laughing stock in the science community. Even such uber-anti-GMO activist as Marion Nestle dismiss his work as biased, unscientific and unreliable. Here are a few articles on that disgrace/hack of a scientist: –http://gmoseralini.org/criticism-seralinis-study-was-designed-to-achieve-a-pre-determined-outcome-and-is-biased-the-studys-objectives-were-unclear/ –http://www.forbes.com/sites/jonentine/2012/09/20/scientists-savage-study-purportedly-showing-health-dangers-of-monsantos-genetically-modified-corn/ –http://www.cosmosmagazine.com/features/gm-corn-and-cancer-seralini-affair/ –http://www.biofortified.org/2012/12/can-the-damage-from-agenda-driven-junk-science-be-undone/–http://archive.constantcontact.com/fs009/1109148816517/archive/1111193469195.html –http://www.cosmosmagazine.com/features/gm-corn-and-cancer-seralini-affair/ –http://www.biofortified.org/2011/01/seralini-seeks-to-dilute-biology-education/ –http://www.science20.com/jon_entine_contrarian/european_food_safety_authority_reviews_dismisses_s%C3%A9ralini_maize_study_hopelessly_flawed-94890

And now you cite him, pretending he is a a serious researcher? So…you reject the NAS, the AMA, the European Food Safety Authority and EVERY MAJOR regulatory body in the world and yet embrace, as your scientific gurus, Mother Jones and Seralini? Do you believe in ghosts? This is pure right wing anti-science gargage. Get a life.

Other than Seralini’s discredited work, there has not been any serious scientific evidence that the process of engineering plants or animals can cause human harm…as would be expected because moving proteins, often serendipitously, happens in nature all the time. On the other hand, we have a live experiment–human consumption of GMOs for going on two decades in humans and far longer in animals–and not even a sniffle has been documented. Here are a few of the 100+ peer reviewed studies that reaffirm the findings of EVERY major research organization in the world that GMOs do not (and based on science have no plausible biological way to) cause harm:

Assessment of the health impact of GM plant diets in long-term and multigenerational animal feeding trials: A literature review Chelsea Snella,Aude Bernheimb, Jean-Baptiste Bergéc, Marcel Kuntzd, Gérard Pascale, Alain Parisf, Agnès E. Ricroch The aim of this systematic review was to collect data concerning the effects of diets containing GM maize, potato, soybean, rice, or triticale on animal health. We examined 12 long-term studies (of more than 90 days, up to 2 years in duration) and 12 multigenerational studies (from 2 to 5 generations). The studies reviewed present evidence to show that GM plants are nutritionally equivalent to their non-GM counterparts and can be safely used in food and feed. http://www.sciencedirect.com/science/article/pii/S0278691511006399

A literature review on the safety assessment of genetically modified plants José L. Domingo, Jordi Giné Bordonaba An equilibrium in the number research groups suggesting, on the basis of their studies, that a number of varieties of GM products (mainly maize and soybeans) are as safe and nutritious as the respective conventional non-GM plant, and those raising still serious concerns, was currently observed. http://www.sciencedirect.com/science/article/pii/S0160412011000055

Report of an Expert Panel on the reanalysis by Séralini et al. (2007) of a 90-day study conducted by Monsanto in support of the safety of a genetically modified corn variety (MON 863)

Safety and nutritional assessment of GM plants and derived food and feed: the role of animal feeding trials. EFSA GMO Panel Working Group on Animal Feeding Trials Results obtained from testing GM food and feed in rodents indicate that large (at least 100-fold) ‘safety’ margins exist between animal exposure levels without observed adverse effects and estimated human daily intake. http://www.ncbi.nlm.nih.gov/pubmed/18328408

The Séralini et al. reanalysis does not advance any new scientific data to indicate that MON 863 caused adverse effects in the 90-day rat study. http://www.sciencedirect.com/science/article/pii/S0278691507003249

Subchronic feeding study with genetically modified stacked trait lepidopteran and coleopteran resistant (DAS-Ø15Ø7-1 × DAS-59122-7) maize grain in Sprague-Dawley rats The results from this study demonstrate that 1507×59122 maize grain is as safe and nutritious as non-GM maize grain and support the concept that crossing of two safe GM maize events results in production of a safe stacked GM event. http://www.ncbi.nlm.nih.gov/pubmed/19358870

There are multiple ridiculous outcomes of being able to own a species. First of all, they have a monopoly on the product, which is detrimental to society, especially on a necessity such as food. Beyond that, will persons now have the ability to own every offspring of birds they raise until they own a flock of a few thousand? Or own forest if their GMO trees reproduce? Would that be considered trespassing on another’s property? It’s easy to see where the implications become crazy.